JERRY E. SMITH, Circuit Judge:
In Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), the Court held that prosecutors retain common-law immunity from suit for all actions "intimately associated with the judicial phase of the criminal process." This appeal raises the issue of whether that absolute immunity extends to a prosecutor's post-trial transfer of private federal tax records to a state ethics commission. Concluding that it does not, we affirm the denial of a motion to dismiss.
Between 2003 and 2006, Dunnica Lampton, the U.S. Attorney for the Southern District of Mississippi, prosecuted Oliver Diaz, a Mississippi Supreme Court justice, and Jennifer Diaz, his wife, for fraud, bribery, and tax evasion. Oliver Diaz was acquitted, but Jennifer Diaz pleaded guilty to tax evasion. Lampton then filed a complaint with the Mississippi Commission on Judicial Performance (the "Commission") about Oliver Diaz's conduct. He included copies of the Diazes' federal tax records obtained during the criminal investigation.
The Diazes sued Lampton in federal court, alleging a violation of 42 U.S.C. § 1983 based on deprivation of rights under 18 U.S.C. § 1905 and 26 U.S.C. §§ 6103 and 7213.
We review de novo the grant of a Rule 12(b)(6) motion to dismiss. Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.2004). "In determining immunity, we accept the allegations of respondent's complaint as true." Kalina v. Fletcher, 522 U.S. 118, 122, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). We also assume, without deciding, that the Diazes' allegations state a cause of action under § 1983.
At the time of § 1983's enactment, common-law prosecutorial immunity extended only to "conduct that is `intimately associated with the judicial phase of the criminal process.'"
To support his novel argument, Lampton contends that Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895
Lampton also points to one case in which a prosecutor enjoyed absolute immunity for post-trial conduct. In Demery v. Kupperman, 735 F.2d 1139 (9th Cir. 1984), a prosecutor after trial revoked a waiver of the requirements for a suspended doctor to reclaim his medical license under state law and failed to notify the doctor of the revocation. The court ruled that the prosecutor enjoyed absolute immunity, because "prosecutors are absolutely immune from civil suits alleging wrongdoing with regard to post-litigation as well as pre-litigation handling of a case." Id. at 1144. Lampton contends that his actions following the criminal prosecution should be similarly immune.
But Demery does not support Lampton's argument. The prosecutor there was completing his duty under state law to monitor the outcome of the proceeding. His actions were thus related to the litigation over which he had jurisdiction. By contrast, Lampton is a federal prosecutor with no duty to bring complaints before a state ethics commission, and the actions for which he seeks immunity are unrelated to his prosecution of the Diazes. Lampton protests that he would not have had access to the tax records were it not for his role as a prosecutor, but that connection is too tenuous. A prosecutor does not have carte blanche to do as he pleases with the information he can access. He can use it only to fulfill his duties as a prosecutor, and Lampton's actions went well beyond those bounds.
Lampton's insistence that he had a duty under the Mississippi Rules of Professional Conduct to report Diaz's misconduct does not change that conclusion.
In short, Lampton points to no case — and we know of none — extending immunity to post-trial conduct relating to a new action before a new tribunal. Every case extending immunity to post-trial actions involves conduct related to the criminal proceeding that the prosecutor initiated.
Furthermore, the policies underlying prosecutorial immunity do not justify immunity in this context. The Supreme Court has identified a variety of policy interests behind prosecutorial immunity. First, and of "primary importance," is the "interest in enabling [the prosecutor] to exercise independent judgment when `deciding which suits to bring and in conducting them in court.'" Kalina, 522 U.S. at 125, 118 S.Ct. 502 (quoting Imbler, 424 U.S. at 424, 96 S.Ct. 984). Specifically, without absolute immunity, the fear of suit may cause the prosecutor to "shade his decisions instead of exercising the independence of judgment required by his public trust." Imbler, 424 U.S. at 423, 96 S.Ct. 984.
That concern is absent here. In the typical immunity case, the prosecutor faces a retaliatory suit (usually for defamation, malicious prosecution, or the like) only if he loses the initial criminal action. Immunity is thus necessary to prevent him from shying away from weaker cases out of fear of liability. By contrast, even if the Commission had ruled against Diaz, Lampton would still face liability. The federal statutes prohibiting release of tax records (unlike state claims for defamation or malicious prosecution) apply regardless of how "strong" is the case against the defendant. There is thus no "prosecutorial discretion" to protect.
Second, immunity lessens the burden of litigation on prosecutors. Without immunity, the "frequency with which criminal defendants bring [retaliatory] suits" would "impose unique and intolerable burdens upon a prosecutor responsible annually for hundreds of indictments and trials." Van de Kamp, 129 S.Ct. at 860, 129 S.Ct. 855 (quoting Imbler, 424 U.S. at 425-26, 96 S.Ct. 984). That burden is considerably lessened here, for the majority of retaliatory suits arise from a prosecutor's day-to-day
Another relevant consideration is "the existence of means other than the imposition of personal liability on the prosecutor to insure that criminal defendants receive fair treatment in the judicial process" and "to deter dishonest prosecutors." Morrison v. City of Baton Rouge, 761 F.2d 242, 246 n. 3 (5th Cir.1985). In this case, the possibility of professional discipline or criminal liability under 18 U.S.C. § 1905 should deter dishonest prosecutors from divulging private tax records. The protections for fair treatment of the defendants, however, are somewhat less than in a typical immunity case. A defendant has the protections of judge, jury, and the appellate process to review any prosecutorial misconduct at trial. Here, by contrast, the decision to release the tax records is unreviewable, and the harm is inflicted immediately. Thus, a civil suit is the only way to make the defendant whole. In short, policy does not support the extension of prosecutorial immunity in this context.
There is, of course, good reason to extend immunity generally to all who report misconduct to state bar ethics committees, and many states have extended absolute immunity to anyone who files a complaint alleging attorney misconduct.
The denial of Lampton's motion to dismiss the Diazes' § 1983 claim is AFFIRMED.
The waiver rule exists to prevent an appellate court from "[analyzing] the facts of a particular [issue] without the benefit of a full record or lower court determination." 19 JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 205.05[1], at 205-57 (3d ed.2011) (quoting Yee v. City of Escondido, 503 U.S. 519, 538, 112 S.Ct. 1522, 118 L.Ed.2d 153 (1992)). Waiver generally will not apply "when [an issue] fairly appears in the record as having been raised or decided." Id. (citing Wheatley v. Wicomico Cnty., 390 F.3d 328, 334-35 (4th Cir.2004)). Here, despite stating that it might be waived, the district court addressed Lampton's argument that state ethics rules required the disclosure. Moreover, there is no prejudice, because Diaz has had an opportunity to respond to that argument on appeal. We thus address Lampton's argument on the merits.
